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- Unreported Judgment
Mission Australia QCAT 24
Mission Australia  QCAT 24
On the papers
27 January 2017
Mission Australia is exempt from the operation of ss 14, 15 and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(a) for three years from the date of this decision relating to Mission Australia advertising for, and the employment of case workers for its Douglas House Homeless Program in Cairns. The exemption applies only to acts or omissions reasonably necessary to ensure employment of sufficient male or female case workers to address the objective of providing that program.
EXEMPTION – where program for homeless people – where Aboriginal and Torres Strait Islander clients – where cultural requirement for male and female case workers to present program to clients – whether exemption appropriate
Anti-Discrimination Act 1991 (Qld), ss 7(a), 14, 15, 113, 127
Boeing Australia Holdings Pty Limited  QADT 21
Mission Australia  QCAT 489
Olympic Roads and Transport Authority  QADT 10
APPEARANCES and REPRESENTATION:
This matter was heard on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- Mission Australia operates a program addressing long term chronic homelessness in Cairns called the Douglas House Homeless Program. Aboriginal and Torres Strait Islander clients are 95% of the clientele. Clients have a history of sleeping rough. The program deals exclusively with high needs clients.
- Two case workers are employed, one male and one female. Recently, the male case worker left the program. Mission Australia seeks to replace that person with another male case worker to ensure both male and female workers are available to meet clients’ needs. Accordingly, Mission Australia seeks an exemption from s 7(a) of the Anti-Discrimination Act 1991 (Qld) (“Act”), namely unlawful discrimination on the basis of sex, in the pre-work area (s 14), work area (s 15) and from the prohibition against discriminatory advertisements (s 127).
Is protection available under s 104 of the Act?
- Section 104 of the Act provides a general exemption so that:
a person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act.
- If that general exemption applies no specific exemption is required under s 113 as sought.
- The Tribunal in Mission Australia  QCAT 489 previously considered a similar application by Mission Australia for a different chronic homelessness service, also with a predominantly Indigenous clientele. Member Stilgoe (as she then was) found on the materials before her:
“The attribute of the group to which the program is directed is “homelessness”. Female clients are a sub-group of the targeted group but it is possible that the case officers employed will be required to do some acts for the benefit of the clientele as a whole. I am not convinced that Mission Australia can achieve the necessary protection from s 104.”
- The facts here are not materially different from those in the earlier decision, although the need here is for both male and female workers, and I agree with the Member’s conclusion.
Anti-Discrimination Commissioner’s views
- The Anti-Discrimination Commissioner’s views were sought, as required by s 113 of the Act. The Commissioner did not object to the exemption sought.
Is an exemption appropriate?
- Section 113 of the Act gives the tribunal power to grant an exemption from the operation of specified provisions of the Act.
- The application was supported by an affidavit of Ms Musumeci, a social worker with Mission Australia in Cairns, and a copy of the position description for a Recovery Worker L3. Ms Musumeci’s evidence is that the clientele is 95% Indigenous; it is culturally inappropriate to have all male or all female case workers, and that clients frequently will not engage with a person of a different gender for cultural reasons. The work, which is undertaken at Mission Australia’s facilities and on the streets and camps, can be dangerous. Clients’ needs include not just homelessness but domestic violence response, substance abuse, poor financial and social skills, poor hygiene, and frequent interactions with police and the courts. The program works intensively with clients for a minimum period of 6 months, aiming to transition them to permanent accommodation.
- Ms Musumeci’s evidence was that both male and female clients frequently will engage only with a case worker of the same gender and both male and female case workers are required to provide services.
- I am mindful of the factors relevant to exemptions stated in Olympic Roads and Transport Authority  QADT 10 and Boeing Australia Holdings Pty Limited  QADT 21, and make the following observations:
- The application is not opposed by the Anti-Discrimination Commissioner;
- The community has an interest in the program succeeding so that vulnerable people are supported and given the opportunity to transition from homelessness to more permanent accommodation;
- If the exemption is not granted, and case workers are employed without regard to gender, the program will not be as effective, and may fail its clients or put them at greater risk of harm;
- There is no non-discriminatory way to achieve the necessary outcome.
- The Applicant seeks only a three-year exemption, reflecting the period of funding for the current program. Over that three-year period, it is foreseeable that other staff members may need to be recruited. Accordingly, any exemption should apply to both male and female employees.
- An exemption is granted from the operation of ss 14, 15 and 127 of the Act in relation to the attribute in s 7(a) for three years from the date of this decision, relating to Mission Australia advertising for, and the employment of case workers for its Douglas House Homeless Program in Cairns. The exemption applies only to acts or omissions reasonably necessary to ensure employment of sufficient male or female case workers to address the objective of providing that program.
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 QCAT 24
27 Jan 2017